Marriage in Nigeria
INTRODUCTION
Divorce, while often a challenging and emotionally taxing process, is sometimes a necessary step for individuals seeking to move forward from an irretrievably broken marriage. Marriage in Nigeria is governed by specific laws. The dissolution of a statutory marriage is primarily regulated by the Matrimonial Causes Act (MCA). This Act provides the legal framework and specific grounds upon which a court can grant a divorce.
UNDERSTANDING STATUTORY MARRIAGE IN NIGERIA
Before exploring the grounds for divorce, one must first understand what constitutes a statutory marriage in Nigeria. People often refer to a statutory marriage as a “court marriage” or “church marriage” (when conducted in a licensed place of worship). The Marriage Act recognizes and regulates this monogamous union. Unlike customary or Islamic marriages, statutory marriages follow a distinct set of laws, and only the High Court of a State or the Federal Capital Territory can dissolve them.
THE SOLE GROUND FOR DIVORCE: IRRETRIEVABLE BREAKDOWN OF MARRIAGE
The fundamental principle underlying divorce in marriage in Nigeria’s statutory marriage system is that the marriage must have “broken down irretrievably.” This is the only ground for divorce under Section 15(1) of the Matrimonial Causes Act. However, proving this “irretrievable breakdown” requires demonstrating one or more of the specific “facts” outlined in Section 15(2) of the MCA. These facts serve as evidence that the marriage has indeed reached a point of no return.
The Eight Proving Facts: Evidencing Irretrievable Breakdown
To establish that a marriage has broken down irretrievably, a petitioner (the spouse seeking the divorce) must prove at least one of the following eight facts:
1. That the Respondent has willfully and persistently refused to consummate the marriage.
This fact applies where one party to a marriage in Nigeria deliberately and repeatedly refuses to engage in sexual intercourse with the other. It’s vital to note that if consummation (even once) has occurred, this ground cannot be relied upon. The refusal must be willful, not due to any physical or medical inability. Also, before there can be a refusal there must be a number of requests, direct or implied, and an opportunity to comply with such request must exist.
2. Adultery and Intolerability
Another fact that must be proved to establish that a marriage in Nigeria has broken down irretrievably is that, since the marriage, the Respondent (the party against whom the petition is instituted) has committed adultery and the petitioner finds it intolerable to live with the respondent.
In proving adultery, the petitioner must provide sufficient evidence (direct or circumstantial) to convince the court that the respondent engaged in sexual intercourse with someone other than their spouse. This can be challenging to prove directly. Adultery may be inferred from several circumstances, including but not limited to: suspicious behaviour, birth of a child, general cohabitation, frequenting hotels or night clubs with strangers, etc.
It’s not enough to merely prove adultery. The petitioner must also demonstrate that they find it genuinely intolerable to continue living with the respondent as a result of the adultery
3. Cruelty/Unreasonable Behaviour
To establish that a marriage has broken down irretrievably, the petitioner must show that the respondent acted in a way that makes it unreasonable for the petitioner to continue living with him.
This is a broad and flexible ground, often used when other specific facts are difficult to prove. “Unreasonable behaviour” encompasses a wide range of conduct, including:
- Physical or emotional cruelty: This can include domestic violence, constant verbal abuse, psychological manipulation, or intimidation.
- Habitual drunkenness or drug addiction: Where the respondent’s addiction makes cohabitation unbearable.
- Neglect or abandonment of marital duties: A persistent failure to provide emotional, financial, or physical support.
- Criminal conduct: Repeated criminal offenses leading to imprisonment, especially if it impacts the marital relationship and the petitioner’s ability to live with the respondent.
- Extreme jealousy, controlling behavior, or disrespect.
It is key to note that the test here is objective. Would a reasonable person, in the petitioner’s shoes, find it unreasonable to continue living with the respondent? Hence, it is expedient for the petitioner to provide specific instances or a pattern of behaviour, not just general complaints.
4. Desertion for at least One Year
To establish that a Marriage has broken down irretrievably, the petitioner must show that the respondent has deserted him/her for a continuous period of at least one year immediately preceding the presentation of the petition.
Desertion occurs when one spouse voluntarily and without justification leaves the other with the intention of bringing cohabitation to an end, without the consent of the deserted spouse. The Petitioner must establish that the respondent has intention to desert and with no valid reason.
5. Living Apart for Two Years with Consent
For a marriage in Nigeria to be said to have broken down irretrievably, the parties to the marriage must have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent must not object to a decree of dissolution being granted.
This fact allows for a “no-fault” divorce if both parties are in agreement. It is important that the other spouse consent to the divorce. If otherwise, this fact cannot be relied upon.
6. Living Apart for Three Years (No Consent Required)
To establish that a marriage has broken down irretrievably, it must be proved that the parties to the marriage have lived apart for a continuous period of at least three years immediately preceding the presentation of the petition.
That is, if the parties have been separated for three years or more, the court can grant a divorce even if one party objects, provided the separation was continuous.
7. Failure to Comply with a Decree for Restitution of Conjugal Rights
Before a marriage can be said to have broken down irretrievably, the respondent has failed to comply with a decree of restitution of conjugal rights made under this Act.
A decree for restitution of conjugal rights is a court order compelling a spouse who has deserted the other to return and resume marital cohabitation. If the respondent fails to obey such an order within a specified period (usually one year), this failure can serve as a ground for divorce.
8. Presumption of Death
It must be proved that the respondent has been absent from the petitioner for such time and in such circumstances as to provide reasonable grounds for presuming that he or she is dead before it can be said that a marriage has broken down irretrievably.
This applies when a spouse has been missing for an extended period (typically seven years or more) without any trace, leading to a reasonable presumption of their death. The petitioner must demonstrate diligent efforts to locate the missing spouse.
CONCLUSION
The Nigerian Matrimonial Causes Act simplifies divorce by defining one overarching ground: irretrievable breakdown of the marriage. However, the law requires the petitioner to prove this breakdown through one or more of eight specific circumstances. These include adultery, desertion, cruelty, or extended separation. The petitioner must clearly establish each ground to support a petition for the dissolution of marriage in Nigeria.
If you are considering divorce or have questions about your marital situation—especially concerning marriage in Nigeria—you should seek proper legal guidance. We recommend that you contact a qualified legal practitioner who specializes in family law. Our experienced lawyers provide personalized advice tailored to your needs. We will support you through every step of the process and work to protect your interests.
CONTRIBUTORS
Lead Partner EKO SOLICITORS AND ADVOCATES
Counsel EKO SOLICITORS AND ADVOCATES
